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Disclaimer as to Uncertain Nature of Law

By Michael H. Cohen, Esq.

Here is the "disclaimer as to uncertain nature of law" for legal memos involving anti-kickback, fee-splitting and self-referral.

The disclaimer incorporates language from a regulatory agency, because this language mirrors the uncertainty inherent in even the best legal advice concerning self-referral / Stark, fee splitting, patient brokering, and kickbacks.

Disclaimer as to Uncertain Nature of Law. The following opinion^[1] by the Office of Attorney General from a sister state, Maryland, suggests the elusive nature of legal guidance in this area of law:

We must begin with an explicit acknowledgment of the limits of this opinion. In general, we will decline to state firm conclusions. Our reticence derives from several factors: the highly uncertain state of the law; the necessity to write an opinion based on a set of complicated facts as given, when additional facts might change the analysis; our inability to make judgments about financial matters, like the 'fair market value' of certain services, that are inextricably linked to legal conclusions; and, finally, the reality that abstract conclusions in an opinion cannot substitute for the judgment of those who enforce these laws in particular cases, who are able to develop a fuller factual record, and who therefore may have a different perspective on the situation than we do.

Your request presents complex issues that are on the cutting edge of the business side of health care. These issues require the interpretation of statutes about which there is little guiding case law. Furthermore, regulations to implement these provisions are not fully in place, and are constantly being reviewed and revised…. As a result, the law dealing with joint ventures, kickbacks, and payments for referral has been said to be an 'area in which darkness and chaos reign.' Hennigan, Structuring Ventures in a Post-Hanlester and Safe Harbors World, 14 Whittier L. Rev. 181, 182 (1993).

In addition, an investigation of whether these laws have been violated is a complex and painstaking matter. Each transaction must be analyzed in minute detail. Your request, by necessity, contains but a brief overview of the facts. Although we have attempted to supplement the facts through inquiries to the person whose situation prompted your request, opinion writing is not an investigatory process. Neither you nor we have a full picture of potentially relevant facts. Even if we did, when the facts must be evaluated against broad criteria like commercial reasonableness or fair market value, we lack the expertise to make these sorts of judgments. Yet, it is exactly these judgments that must sometimes be made before a firm legal conclusion can be reached.

For all of these reasons, our answers to the questions that you raise cannot be definitive.

*
If you have legal questions concerning self-referral, kickbacks and fee-splitting or patient brokering in New York, California, Massachusetts, Washington DC, and other states, contact a lawyer who knows the referral rules.

Consult an experienced health care law attorney who knows complementary medicine and integrative medicine for legal advice pertaining to any project involving allied health or CAM professionals.

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Michael H. Cohen is an attorney providing business legal advice to green entrepreneurs and companies, and health care law advice to businesses and physicians, acupuncturists, naturopaths, homeopaths and others in the holistic health, wellness, and green industries. He works with telemedicine and other cutting-edge technologies and gives clear legal advice to grow your business.

As a founding attorney of the Global Vision Law Group, he represents businesses poised for vertical lift, whose leaders are conscious, intuitive, and committed to shaping a better world. Michael also advises medical spas and integrative medicine clinics, physicians, chiropractors, naturopathic physicians, massage therapists, energy healers, nutritionists and herbalists, dietary supplement and cosmetics companies, and businesses with bio-energy and other technologies and medical devices. The website also offers the Entrepreneur's Legal Toolkit as a series of legal guides to businesses.

Read reviews of Mr. Cohen's work on the Complementary Complementary and Alternative Medicine Law Blog. And visit the Legal Services page for information on legal services where a  flat rate or project fee can be discussed (such as incorporation for entrepreneurs, review and drafting of business contracts, trademark, and health law services for CAM providers and others).

Our healthcare law and business law firm also provides special expertise to attorneys and law firms whose clients are involved in wellness industry projects or who require guidance regarding fee-splitting, Stark, anti-kickback, medical board discipline, and other health law and regulatory compliance issues.

To speak with a lawyer about health care law issues pertaining to complementary and alternative medicine, or to consult a business lawyer about laws and legal issues for entrepreneurs and new enterprises that are seeking legal advice, contact the Global Vision Law Group today. 

 

Full post as published by Complementary And Alternative Medicine Law Blog on September 13, 2010 (boomark / email).